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Ramchandra Kotasthane Vs. State of Madhya Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 78 of 1964
Judge
Reported inAIR1968MP77; (1968)ILLJ655MP
ActsConstitution of India - Articles 14 and 16; Madhya Pradesh Judicial Service (Classification, Recruitment and Conditions of Service) Rules, 1955 - Rule 7(1); Madhya Pradesh Unification of Pay Scales and Fixation of Pay on Absorption Rules, 1959 - Rules 4 and 9; Indian Administrative Service (Pay) Rules, 1954 - Rule 4(4)
AppellantRamchandra Kotasthane
RespondentState of Madhya Pradesh and ors.
Appellant AdvocateG.M. Chaphekar and ;R.K. Tankha, Advs.
Respondent AdvocateA.P. Sen, Adv. General and ;K.K. Dubey, Govt. Adv.
DispositionPetition dismissed
Cases ReferredKishori Mohanlal Bakshi v. Union of India
Excerpt:
.....857. if, therefore, a person who was a permanent district and sessions judge in the old state of madhya pradesh before 1st november 1956 and who continued to serve in that capacity in the new state drew a higher salary than the petitioner even after the application of the unified scale of pay to the applicant on 1st april 1958, the petitioner cannot complain that there has been any discrimination as between him and the district and sessions judges from the old state of madhya pradesh. union of india, air 1962 sc 1139, the abstract doctrine of equal pay for equal work has nothing to do with article 14. government could have no doubt made the unified scale applicable from 1st november 1956 instead of 1st april 1958; but if it did not choose to do so, the applicant cannot complain that..........madhya bharat state as district and sessions judge on 1st november 1956 when thenew state of madhya pradesh comprising of the madhya bharat state came into existence, continued to serve in the state of madhya pradesh as district and sessions-judges till he retifed on 30th december 1960. his case is that when he was integrated and absorbed in the new state as district and sessions judge, he became entitled under the madhya pradesh unification of pay scales and fixation of pay on absorption rules, 1959 (hereinafter referred to as the rules) to have his pay fixed according to the indian administrative service senior scale and the pay rules governing the service according to the government's notification no. 356.3-1029/i-integ., published in the gazette dated 7th october 1960; that the.....
Judgment:

Dixit, C.J.

1. The petitioner in this case, who was in the service of the former Madhya Bharat State as District and Sessions Judge on 1st November 1956 when thenew State of Madhya Pradesh comprising of the Madhya Bharat State came into existence, continued to serve in the State of Madhya Pradesh as District and Sessions-Judges till he retifed on 30th December 1960. His case is that when he was integrated and absorbed in the new State as District and Sessions Judge, he became entitled under the Madhya Pradesh Unification of Pay Scales and Fixation of Pay on Absorption Rules, 1959 (hereinafter referred to as the Rules) to have his pay fixed according to the Indian Administrative Service Senior Scale and the pay rules governing the service according to the Government's Notification No. 356.3-1029/I-Integ., published in the Gazette dated 7th October 1960; that the Unified Scale of pay, namely, the L A. S. Senior Scale, was made applicable to all the District and Sessions Judges in the new State from 1st April 1958, and, therefore, from that date he was entitled to get his pay fixed in accordance with the principles laid down in Section 2 of Schedule 2 of the Indian Administrative Service (Pay) Rules, 1954; and that if this had been done, he would have got an increment of Rs. 320 in his basic salary and would have thus received a monthly salary of Rs. 1120 from 1st April 1958.

The grievance of the applicant is that the Government denied him this increment and that when he and some other District and Sessions Judges similarly placed as he was made a representation, a memorandum was issued by the Law Department of the Government (No. 25065-3048/XXI-B dated 13-7-1964) saying that 'judicial officers drawn from units other than the old Madhya Pradesh, who were promoted as District and Sessions Judges on or after 1st April 1958 and are hereinafter promoted as District and Sessions Judges, be allowed the benefit of pay fixation in the I. A. S. Senior Scale in accordance with illustration II below Schedule II to the I. A. S. (Pay) Rules, 1954, which benefit is permissible to officers of the old Madhya Pradesh by virtue of rule 7(1) of the Madhya Pradesh Judicial Service (Classification, Recruitment and Conditions of Service) Rule. 1955.'

2. The petitioner says that by refusing to fix the initial pay of a permanent allocated District and Sessions Judge drawn from units other than the old Madhya Pradesh area in accordance with the principles laid down in Section 2 of Schedule 2 of the I. A. S. (Pay) Rules, 1954, and by giving the benefit of that fixation of pay only to those judicial officers from units other than the old Madhya Pradesh who were promoted as District and Sessions Judges on or after 1st April, 1958 according to the Memorandum dated 13th July 1964, persons who were serving as permanent District and Sessions Judges in units other than the old Madhya Pradesh and who were integrated and absorbed as permanent District and SessionsJudges in the new State of Madhya Pradesh were discriminated against in the matter of pay fixation and that persons from the old Madhya Pradesh area who were promoted before and even on or after 1st April 1958 as District and Sessions Judges were given a higher salary. The petitioner has described this discrimination as 'without any reasonable basic, disclosing vividly partiality and mala fides on the part of the Government and purposeful'.

He seeks a declaration that the Memorandum dated 13th July 1964 in so far as it withholds the benefit of initial pay fixation from District and Sessions Judges promoted prior to 1st April 1958 be declared to be void and unconstitutional as repugnant to articles 14 and 16 of the Constitution. His further prayer is that a direction be issued to the opponents to fix his pay from 1st April 1958 according to the principles laid down in Section 2 of Schedule 2 of the I. A. S. (Pav) Rules, 1954.

3. Before dealing with the petitioner's contention it is necessary to state that the new State of Madhya Pradesh formed by the States Reorganisation Act, 1956 comprised of certain Districts of the old State of Madhya Pradesh, the State of former Madhya Bharat, the territories of the former Vindhya Pradesh and the territories of the former State of Bhopal. In these four regions, different scales of pay for the District and Sessions Judges serving in those states prevailed before 1st November, 1956. In the Mahakoshal region, all posts in the cadre of District and Sessions Judge carried the senior time-scale of pay of the Indian Administrative Service, namely, Rs 800-1800 and the rules regulating the pay of State Civil Service Officers (executive) promoted to the Indian Administrative Service applied mutatis mutandis in regard to the fixation of pay of officers promoted to the cadre of District and Sessions Judges. This was provided by Rule 7(1) of the Madhya Pradesh Judicial Service (Classification, Recruitment and Condition of Service) Rules, 1955. In the State of Madhya Bharat the time-scale of pay of District and Sessions Judges was Rs 800-1200 (ordinary) and Rs. 1250-1500 (Select Grade).

In the State of Vindhya Pradesh and Bhopal the scale of pay of District and Sessions Judges was Rs. 800-1800 and Rs. 500-850 respectively With a view to bring about uniformity in the pay scales of civil servants drawn from different regions who were integrated and absorbed in the new State of Madhya Pradesh, the Madhya Pradesh Unification of Pay Scales and Fixation of Pay on Absorption Rules, 1959, were made by the Governor in exercise of the powers conferred on him by the proviso to article 309 of the Constitution read with the proviso to Section 115(7) of the State Reorganisation Act, 1956 These rules came into force from 1st April 1958. Rule 2(k) of these rules de-fined 'Unified scale' as meaning 'a scale of pay fixed by Government, and so described, by a general or special order in this behalf whether passed before or after the coming into force of these rules'. An 'Allocated Government servant' has been defined by Rule 2 (a) as 'a person in the service of a former State allotted or deemed to have been allotted to serve the State of Madhya Pradesh, under the provisions of Section 115 of the State Reorganisation Act, 1956, and continued in the service of the new State'. Rule 4 of the rules lays down:--

''Subject to the provisions contained in Rule 7, the pay scale applicable to an allocated Government servant on 1st April 1958 or on such earlier date as may have been fixed in this behalf by a general or special order, shall be unified scale applicable to his post of absorption.

Provided that such allocated Government servant may elect to retain the existing scale applicable to the post held by him in a substantive, officiating or temporary capacity on the 31st October, 1956 so long as he holds the post or a post corresponding to the one which he was holding.' Rule 7 provides that a Government servant may, instead of coming on the unified scale, as specified in Rule 4 or Rule 6 elect to come on the said scale at his option on a date indicated in the table given in the rule. Rule 9 deals with the fixation of initial pay of a Government servant in the unified scale. It is as follows:--

'The initial pay of a Government servant in the unified scale shall, except where Government by a special order otherwise direct, be fixed as follows: -- He shall draw as initial pay, the pay of the stage in the unified scale which is equal to his basic pay in the present scale or if there is no such stage the stage next below that pay plus personal pay equal to the difference to be absorbed in subsequent increments and in either case he shall continue to draw that pay until such time as he would have received an increment in the present scale or for the period after which an increment is earned in the unified scale, whichever is less, but if the minimum pay of the unified scale is higher than his basic pay in the present scale, he will draw that minimum as initial pay'.

by the Notification No. 3563-1029/I-Integ. dated the 5th October, 1960. published in the Gazette dated 7th October, 1960, the Government fixed the I. A S. Senior Scale as the Unified Scale of pay for District and Sessions Judges in the new State The Notification said that the application of the unified scale would be regulated by the Madhya Pradesh Unification of Pay Scales and Fixation of Pay on Absorption Rules, 1959. It is important to note that the afore-said Notification while saying that the unified scale of pay for District and SessionsJudges would be I. A. S. Senior Scale did not say that in the fixation of the initial pay of persons promoted as District and Sessions Judges before or after 1st April, 1958, the I. A. S. (Pay) Rules, 1954, would apply mutatis mutandis.

Now, there is no dispute that on 1st November, 1956 the petitioner was serving as a permanent District and Sessions Judge in the old State of Madhya Bharat and on the formation of the new State he became an allocated Government servant within the meaning of Rule 2(a). The unified scale of pay, namely, the I. A. S. Senior Scale, became applicable to him from 1st April 1958 as provided by Rule 4 of the Rules. The applicability of the unified scale being regulated by the Madhya Pradesh Unification of Pay Scales and Fixation of Pay on Absorption Rules, 1959, the fixation of the initial pay of the applicant in the unified scale could only be in accordance with Rule 9.

4. The applicant does not contest that the fixation of his initial pay in the unified scale, when that scale was made applicable to him on 1st April 1958, was actually in accordance with Rule 9. What he contends is that when the I. A. S. Senior Scale was made applicable to him, the fixation of his initial pay in this scale should have been in accordance with Rule 4(4) of the I. A. S. (Pay) Rules, 1954 That rule is in the following terms:--

'4(4) The initial pay of a promoted officer who on the date of his appointment to the Indian Administrative Service had held or is holding continuously a cadre post in an officiating capacity shall be fixed in accordance with the principles laid down in Section 2 of Schedule 2.

* * * * * In our judgment, there is no substance in this contention The I. A. S. (Pay) Rules, 1954 do not in terms apply to persons holding the posts of District and Sessions Judges in the new State They did not so apply even to the District and Sessions Judges in the old State of Madhya Pradesh. It is because of this position that it was specifically provided by separate orders and rules of the State Government that the scale of pay of the District and Sessions Judges would be the I. A. S. Senior Scale and that the rules regulating the pay of the State Civil Service officers (executive) promoted to the Indian Administrative Service shall apply mutatis mutandis in regard to the fixation of pay of officers promoted as District and Sessions Judges (vide R 7 of the M. P. Judicial Service (Classification, Recruitment and Conditions of Service') Rules. 1955

For the same reason, the Government specifically provided by the Notification published on 7th October 1960 that the scale of pay of District and Sessions Judges would be the I. A. S. Senior Scale and further laid down by Memorandum No. 25065-3048/XXI-B, dated the 13th July, 1964, that judicial officers drawn from units other than the old Madhya Pradesh, who were promoted as District and Sessions Judges on or after 1st April, 1958 would be allowed the benefit of pay fixation in the I. A. S. Senior Scale in accordance with Section 2, Schedule 2, of the I. A. S. (Pay) Rules, 1954. By his absorption as District and Sessions Judge in the new State of Madhya Pradesh the petitioner cannot claim that he was promoted to the Indian Administrative Service and prior to that was holding continuously a cadre post as defined in Rule 2 (a) of the I. A. S. (Pay) Rules, 1954, in an officiating capacity. That being so, Rule 4(4) of the I. A. S. (Pay) Rules, 1954, does not in terms apply to the applicant and is of no assistance to him whatsoever in supporting his claim for fixation of pay in accordance with Section 2 of Schedule 2 of the I. A. S. (Pay) Rules, 1954.

5. According to the Memorandum dated 13th July 1964 the benefit of pay fixation in accordance with Section 2 of Schedule 2 of the I. A. S. (Pay) Rules, 1954, can be given only to those judicial officers who were promoted as District and Sessions Judges on or after 1st April 1958. The Applicant cannot clearly be regarded as a person who was promoted as District and Sessions Judge on or after 1st April 1958. He was promoted as District and Sessions Judge and became a permanent District and Sessions Judge in the State of Madhya Bharat itself and even before 1st April 1958. He was on 1st November 1956 and after absorption in the new State in the category of an 'allocated permanent District and Sessions Judge'. The petitioner's contention that he should have been given the benefit of fixation of pay in accordance with Section 2 of Schedule 2 of the I. A. S. (Pay) Rules, 1954, in effect amounts to saying that the unified scale of pay, namely, the I. A. S. Senior Scale, should have been made applicable to him not from 1st April 1958 but from an anterior date, namely, from the date on which he was promoted as District and Sessions Judge. This contention cannot be accepted for the simple reason that when the unified scale of pay was made applicable from 1st April 1958 under the M. P Unification of Pay Scales and Fixation of Pay on Absorption Rules, 1959, the petitioner cannot claim that he is entitled to the benefit of the unified scale in any way even before the unified scale came into force. He cannot claim as of right that the unified scale should have been made applicable to him from a date earlier to 1st April, 1958.

6. It if true that as the petitioner's initial pay in the unified scale was fixed in accordance with Rule 9, a disparity arose between the pay received by him from 1st April 1958 and the pay received from that date by persons promoted as District and Sessions Judges before 1st November 1956 in the Mahakoshal region and persons whowere promoted as District and Sessions Judges on or after 1st April 1958. But this difference in the matter of pay is not voila-tive of article 14 or article 16 of the Constitution. As stated earlier, after 1st November 1956 the petitioner was in the category of an allocated permanent District and Sessions Judge. The M. P. Unification of Pay Scales and Fixation of Pay on Absorption Rules, 1959, and the Notification dated 5th October 1960 themselves do not draw any distinction in the matter of pay scale of allocated permanent District and Sessions Judges. The difference that arose after 1st April 1958 in the pay of allocated permanent District and Sessions Judges was not because of the 1959 Rules or the Notification dated 5th October 1960 but because of the fact that in the old Madhya Pradesh the pay scale of permanent District and Sessiona Judges was already the I. A. S. Senior Scale, and, therefore, the fixation of their initial pay was governed by Rule 7 of the M. P. Judicial Service (Classification, Recruitment and Conditions of Service) Rules, 1955.

In the Madhya Bharat region from where the petitioner failed, the scale of pay was Rs. 800-1200 (ordinary) and Rs. 1250-1500 (Select Grade). Now, it is well settled by numerous decisions of the Supreme Court that a differentiation arising from historical reasons and geographical classification based on historical reasons cannot be held to be violative of article 14. (See Bhaiyalal Shu-kla v. State of M. P. (1962) Supp 2 SCR 257 = AIR 1962 SC 981 = 1964 MPLJ 864; State of M. P. v. Gwalior Sugar Co. Ltd., 1962 (2) SCR 619; Prithvi Ra1 v. State of Raiasthan, Civil Appeals Nos. 327 and 328 of 1956 D/- 2-11-1960 (SC); Anant Prasad Lakshminivas v. State of Andhra Pradesh, AIR 1963 SC 853 and State of M. P. v. Bhopal Sugar Industries, AIR 1964 SC 1179 = 1964 MPLJ 857.

If, therefore, a person who was a permanent District and Sessions Judge in the old State of Madhya Pradesh before 1st November 1956 and who continued to serve in that capacity in the new State drew a higher salary than the petitioner even after the application of the unified scale of pay to the applicant on 1st April 1958, the petitioner cannot complain that there has been any discrimination as between him and the District and Sessions Judges from the old State of Madhya Pradesh. An allocated District and Sessions Judges from the old State of Madhya Pradesh drew a higher salary because of the fact that in the old State of Madhya Pradesh the pay scale of District and Sessions Judges was already the I. A. S. Senior Scale and the fixation of their pay was governed by the M. P. Judicial Service (Classification, Recruitment and Conditions of Service) Rules 1955 and not because of any different application of the unified scale of pay. In regard to the difference in the petitioner's salary after 1st April 1958and the salary of a person under the unified scale promoted as District and Sessions Judge after 1st April 1958, the differentiation is not between persons similarly placed.

The petitioner belonged to a class of persons who had already been promoted as District and Sessions Judges before the unified scale came into force. Equal protection under article 14 means a right to equal treatment, in similar circumstances. That article does not require things or persons of different type and nature in fact to be treated in law as though they were the same. As an allocated permanent District and Sessions Judge he could not claim that he should have been treated in the same way as a person who was promoted after 1st April 1958 as a District and Sessions Judge. It is no doubt true that the petitioner did the same kind of work as allocated permanent District and Sessions Judges from the old State of Madhya Pradesh and the persons promoted as District and Sessions Judges after 1st April 1958 did. But as has been pointed out by the Supreme Court in Kishori Mohanlal Bakshi v. Union of India, AIR 1962 SC 1139, the abstract doctrine of equal pay for equal work has nothing to do with article 14.

Government could have no doubt made the unified scale applicable from 1st November 1956 instead of 1st April 1958; but if it did not choose to do so, the applicant cannot complain that there has been a violation of article 14. It was within the discretion and right of the Government to fix any date for bringing the unified scale into force. The Unification of Pay Scales and Fixation of Pay or Absorption Rules came into force on 1st April 1958. They did not have any retrospective operation. The question whether a law offends article 14 does not depend upon whether it is prospective or retrospective. A law operating retrospectively as well as prospectively can contravene the provisions of that article. The rules in question do not bring about any inequality among those equally circumstanced In our opinion, the petitioner's contention that by the fixation of his initial pay in accordance with Rule 9 of the Rules, thp Government discriminated between him on the one hand and the allocated permanent District and Sessions Judges from thp old State of Madhya Pradesh. as also persons promoted as District and Sessions Judges on or after 1-4-1958. on the other is untenable

7. For the foregoing reasons, our conclusion is that this petition must be and is dismissed with costs Counsel's fee is fixed at Rs. 150. The outstanding amount of the security deposit after deduction of costs shall be refunded to the petitioner


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